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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Carr v. Carr (02/09/2007) sp-6098

Carr v. Carr (02/09/2007) sp-6098, 152 P3d 450

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 11598
Appellant, )
) Superior Court No. 3PA-01-1378 CI
v. )
) O P I N I O N
) No. 6098 - February 9, 2007
Appellee. )
Appeal    from     the
          Superior Court of the State of Alaska,  Third
          Judicial District, Palmer, Eric Smith, Judge.

          Appearances:    Ann  DeArmond,   Sterling   &
          DeArmond,   P.C.,  Wasilla,  for   Appellant.
          Candice  M.  Bales, Law Office of Candice  M.
          Bales, Palmer, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          BRYNER, Chief Justice.
          Soon  after  Kelly and Connie Carr separated  in  2004,
Kelly  was  indicted for sexually abusing minors  and  possessing
child  pornography.  Connie then filed for divorce.  With  Kellys
consent,  Superior Court Judge Eric Smith presided over both  the
divorce and the criminal cases.  After a jury convicted Kelly  in
the  criminal case, Judge Smith held a trial on disputed property
issues in the divorce; Kelly participated telephonically from the
jail.   The court ruled against Kelly on most points in  dispute.
Kelly later moved to set aside the property order, alleging  that
by  the  time  Judge Smith decided the property  issues,  he  had
formed  a bias against Kelly because of evidence presented during
the  criminal trial.  Judge Smith refused to recuse  himself  and
denied  Kellys motion.  On appeal Kelly claims that the  superior
court erred in deciding disputed property issues and in requiring
Kelly to participate telephonically at trial.  He also renews his
assertions  of  bias,  contending that Judge  Smith  should  have
stepped  down from the case and granted a new trial.  Our  review
of  the  record reveals no clear error or abuse of discretion  in
the  courts rulings on property issues and on Kellys presence  at
trial; we also find no support in the record for Kellys claims of
actual and apparent judicial bias.  We therefore affirm.
          Kelly  and Connie Carr married in 1985.  They have  two
children, a son and a daughter.  In 1994 the family hit  a  moose
while  driving in their car; the accident caused relatively minor
injuries to Connie and the children but left Kelly with a  spinal
injury  that  rendered him a quadriplegic.  The family  sued  the
manufacturer  of their car, Subaru, and recovered a net  $250,000
in  August 2000.  The settlement funds were distributed with four
separate  checks: each child received a check for $1,000;  Connie
was paid ten percent of the total funds; and the remaining eighty-
nine percent went to Kelly.
          It   is  undisputed  that  the  funds  Kelly  recovered
compensated  him for noneconomic losses and, as a result,  became
Kellys  separate  property when he received  the  payment.  Kelly
temporarily   deposited  the  settlement  proceeds   into   three
accounts: the parties joint checking account, a savings  account,
and  a  money market account.  Soon after, Kelly transferred  the
money into his stock account.
          Meanwhile,  in 1996, Kelly and Connie had  purchased  a
lot  in Palmer from a contractor who agreed to build them  a  new
home  on the property; the cost of the contract totaled $119,452.
Kelly and Connie financed the transaction with a mortgage through
the USDA Rural Development Service.
          Soon  after the new house was built, its basement began
flooding.   Kelly and Connie sued their contractor and eventually
recovered  $43,095.  They received the money for this  settlement
in  October  2000  about three months after receiving the  Subaru
settlement  funds   and  deposited it into their  joint  checking
          While  their  suit against the contractor was  pending,
Kelly  and  Connie obtained an additional loan  from  USDA  Rural
Development in the amount of $20,000.1  The same day the  parties
received  the  settlement funds for their contract  claim,  Kelly
combined  funds  from  the  Subaru settlement  and  the  contract
settlement to pay off the outstanding balances on the parties two
outstanding USDA Rural Development loans.  These payments totaled
$136,990   $93,895  of which came from Kellys savings  and  stock
          Kelly  and Connie separated less than a year later,  in
September  2001.  On November 26, 2001, the state filed  multiple
charges  against  Kelly  for  possessing  child  pornography  and
sexually abusing minors, including his daughter and a niece.
          In February 2002 Connie filed for divorce.  With Kellys
approval,  both  the  criminal case and  the  divorce  case  were
assigned  to Superior Court Judge Eric Smith. Judge Smith  stayed
the  divorce  proceedings pending Kellys trial  in  the  criminal
          case. Kelly was released on bail and allowed to remain in the
marital home until his criminal trial.  A jury found Kelly guilty
on  the  criminal  charges in March 2004.   He  was  remanded  to
custody after being found guilty.
          The divorce proceedings resumed soon after the criminal
case  was  tried.  Judge Smith held a hearing to resolve disputed
custody  and property issues on June 2 and 4, 2004.   Before  the
hearing,  Kelly  moved for an order requiring the  Department  of
Corrections   to   transport  him  to  court  for   the   divorce
proceedings; he asked that the department bear the costs  of  his
transportation, asserting that he was indigent.   The  department
opposed  Kellys motion, contending that Kelly had failed to  show
that  he  was indigent or that he needed to be personally present
to  participate  in  the  proceedings. The  court  denied  Kellys
motion, noting that he could appear telephonically.
          The  main controversy at trial centered on dividing the
parties  assets  and  determining who  owned  the  marital  home.
Connie  argued that the court should divide the marital  property
equally and contended that the home was marital property.   Kelly
chiefly  maintained  that  the  court  should  treat  eighty-nine
percent  of the value of the house as his separate property.   In
taking this position, he asserted that the home had been paid for
with  the Subaru settlement monies, eighty-nine percent of  which
had  been  his separate property.  Kelly also asked the court  to
award  him  monthly alimony payments of $400  so  that  he  could
obtain a college degree.  He further sought an award of attorneys
          The   superior  court  issued  findings  of  fact   and
conclusions  of  law resolving the property issues  on  June  17,
2004.   Its decision treated the parties home as a marital asset,
divided the marital estate evenly, and denied Kellys requests for
spousal  support and attorneys fees.  To implement  the  property
division,  the court directed Connie to pay Kelly $67,370  within
ninety days after the court issued its order.
          On June 25, 2004  eight days after issuing his findings
and conclusion in the divorce case  Judge Smith presided over the
sentencing hearing in Kellys criminal case.  During the  hearing,
Judge Smith described his reaction to some of the images of child
pornography presented during the trial, saying:
          They  made  me  want  to scream,  to  put  it
          bluntly.   It was all I could do to  restrain
          myself.    Its  one  of  the  most  difficult
          moments Ive had on the bench since I became a
          judge.  Its almost been eight years.   But  I
          just wanted to run out of the room screaming.
          They were awful.
          Nearly nine months later, in March 2005, Kelly filed  a
motion  in  the divorce case, seeking to set aside  the  property
division  under  Civil Rule 60(b) on grounds of newly  discovered
evidence.   Kellys newly discovered evidence consisted  of  Judge
Smiths remarks at Kellys sentencing hearing, which, according  to
Kelly,  demonstrated that the judge was biased  against  him  and
should  not  have  presided over the divorce proceedings.   Kelly
also  moved  to disqualify Judge Smith from ruling  on  the  Rule
60(b) motion.
          Judge  Smith  denied Kellys request to recuse  himself.
Superior  Court  Judge  Dan A. Hensley  affirmed  this  decision,
ruling  that Kelly had failed to establish that Judge  Smith  was
biased.  Judge Smith then proceeded to consider Kellys motion for
relief  from judgment, denying the motion both on its merits  and
because it was untimely.
          Kelly   now   appeals   the   superior   courts   order
distributing  the marital property, its denial of his  motion  to
appear personally at the divorce trial, as well as its subsequent
order denying his motion for relief from judgment.
     A.   Classifying the Marital Home
          Kelly   insists  that  the  superior  court  erred   in
classifying  the  parties  residence  as  marital  property.   He
argues,  as  he  did below, that the loans on the residence  were
paid  off with money from his savings and stock accounts, eighty-
nine  percent of which can be traced back to his personal  injury
settlement, which was his separate property.  Accordingly,  Kelly
reasons, eighty-nine percent of the homes equity should have been
treated  as his separate property.  Kelly insists that  he  never
intended to donate any portion of his Subaru settlement funds  to
the  marital  estate, and he claims that he used  his  settlement
monies to pay off the mortgages only because he believed it would
be  a sound investment to park his money in the house instead  of
investing it in the stock market.
          Connie  responds  that [t]he house was  acquired  as  a
marital  asset and always remained a marital asset.  She  insists
that,  even  if  Kelly  did  not  intend  to  donate  his  Subaru
settlement  funds  to  the marriage when he  originally  received
them, the funds transmuted [in]to a marital asset when they  were
used to pay off the house.
          In ruling on this point, the superior court agreed with
Connies  position, expressly rejecting Kellys theory:  The  house
clearly  was  marital  at  the time it was  purchased.   [Kellys]
argument therefore really is that by paying off the mortgage, the
house transmuted largely into his personal property.  In addition
to  noting that it had found no case law to support Kellys theory
of  reverse  transmutation, the court found that  Kellys  actions
during  the  marriage demonstrated that he intended  to  use  the
Subaru settlement funds as marital assets:
               While  [Kelly] denied it at  trial,  the
          monies  used  to  pay  off  the  loans   were
          contributed  to  the marriage.   The  parties
          were   in   severe  financial  straits;   the
          payments  resolved  many of  their  financial
          difficulties.   [Kelly]  routinely  used  his
          personal  funds to pay marital expenses,  and
          in  this case he used the settlement funds to
          pay  off  credit cards.  Most important,  the
          house  remained titled in both parties  names
          when  they  received their new title  to  the
          house, and they continued to reside there and
          to treat the home as their marital residence.
          Although Kelly adamantly disputes these findings, it is
not  our  role as an appellate court to reweigh the  evidence  or
redetermine disputed factual issues.  Whether a spouses  separate
property has become marital property through transmutation is  an
issue  of  intent.2  The superior court determines  whether  this
intent  exists  by  examining  the parties  words  and  actions.3
Whether  intent  to  transmute  separate  property  into  marital
property  exists  is  an issue of fact.4  Trial  courts  exercise
broad  discretion  when dividing marital assets.5   We  review  a
trial  courts decision to classify property as marital  only  for
abuse of discretion;6 and we review the courts underlying factual
findings  only  for  clear  error.7  Here,  substantial  evidence
supports  the superior courts findings.  Those findings  are  not
clearly erroneous, and our review of the record does not persuade
us  that the superior court abused its discretion in treating the
home as a marital asset.
     B.   Imputed Rent
          The  superior court may impute the rental value of  one
partys exclusive use of the marital residence after separation to
that  party when it equitably divides the marital estate  between
the  parties.8  After Kelly and Connie separated, Kelly lived  in
the family residence for about twenty-nine months; during most of
that  time  he  was awaiting trial on his criminal  charges.   In
dividing  the  marital property, the superior court treated  this
period  of  occupancy  as though Kelly had  received  twenty-nine
months  worth  of rent from the marital estate.   Kelly  contends
that  the trial court should have imputed only eleven percent  of
the rent to him.  But his position hinges on his mistaken premise
that  eighty-nine  percent of the homes equity was  his  separate
property.    Because  we  have  rejected  that  premise,   Kellys
challenge to the order imputing rent lacks merit.
     C.   Equal Division of the Marital Estate
          Kelly  next  argues  that the  court  should  not  have
divided  the  marital estate evenly.  We review  a  trial  courts
allocation  of  property  for abuse of discretion  and  will  not
reverse the courts order  unless it is clearly unjust.9
          Here,  in determining how to divide the marital estate,
the  superior  court simply noted:  The parties  agree  that  the
estate  should  be  split  50/50.  Kelly disputes  this  finding.
Although he seems to acknowledge that he never explicitly  argued
for  an uneven division, he insists that he implicitly sought  an
unequal division by arguing that he owned eighty-nine percent  of
the  equity in the family home:  [I]t was clear that if the court
held  that  the real property was marital [Kellys]  position  was
that  an  equitable division required that he receive  a  greater
share of the marital property.
          Connie disagrees.  She notes that nowhere in his  trial
brief  or his testimony at trial did Kelly assert that he  should
receive  more than fifty percent of the marital estate.   Connies
observation  has  merit.  Our review of  the  record  reveals  no
backup contention by Kelly  implicit or explicit  that the  court
should  divide  the marital estate unevenly if  it  rejected  his
          argument that eighty-nine percent of the homes equity was his
separate property.
          Kelly   nonetheless  argues  that   he   rebutted   the
presumption  favoring an equal division10 by presenting  evidence
showing that, unlike Connie, he had grave health problems, lacked
earning capacity, had extremely poor financial prospects, and had
never  obtained a college degree.  Kelly insists that under these
circumstances the statutory factors governing equitable division11
required  the court to award him the lions share of  the  marital
estate.  In response Connie points to the reality that Kelly  has
now been sentenced to serve a lengthy term in prison, so most  of
his  material needs will be provided by the state.  Further,  she
argues,  Kellys financial situation at the time of the trial  was
actually better than hers, and any financial woes Kelly now faces
have largely been caused by his own criminal conduct.
          Our  review of the record convinces us that Connie  has
the  better argument on this point.  As the superior court  aptly
noted,  here both parties lived on low incomes which  barely  met
their expenses.  Although Connies new nursing degree gives her an
advantage  in  meeting  her future needs, Kellys  lengthy  prison
sentence  means  that  the  Department  of  Corrections  will  be
responsible for meeting his physical and rehabilitative needs  in
the foreseeable future.  Since we find no compelling evidence  in
the  record  that  would dictate an uneven property  distribution
under  these  circumstances, we see no basis for concluding  that
the  superior court abused its discretion in evenly dividing  the
marital estate.
     D.   Rehabilitative Maintenance
          While  testifying at trial, Kelly asked  the  court  to
award  him rehabilitative spousal support so that he could obtain
a   college  degree.   He  testified  that  he  wanted  to  study
architecture  or  design, thought it would take him  about  three
years to obtain a degree, and estimated that he would need around
$400  per  month  in support.  In rejecting this request  at  the
conclusion  of  trial,  the superior court,  relying  on  Connies
opposing position, noted that Kelly was not precluded from  going
to college during the marriage, and in fact he specifically chose
not  to do so.  Kelly challenges this ruling, arguing that, given
his  physical disability and lack of marketable skills, an  award
of spousal support was warranted.
          We  review decisions concerning spousal maintenance for
abuse   of   discretion.12   Our  case  law  recognizes   spousal
maintenance is usually appropriate only when it is both just  and
necessary  since  [t]he preference in Alaska is  to  resolve  the
financial  concerns  arising from  a  divorce  by  means  of  the
property division.13  Moreover, we have previously observed  that
the  form of spousal support Kelly requested here  rehabilitative
alimony  should usually be reserved for situations in which   the
recipient spouse intends to apply the alimony toward job training
designed  to lead to employment.14  We have also noted  that  the
primary  factors  which should be considered in awarding  interim
spousal  maintenance are the relative economic circumstances  and
needs of the parties and the ability to pay the maintenance.15  We
have  emphasized that, to qualify for rehabilitative  alimony,  a
          spouse must at least identify a career goal, a degree program
aimed  at realizing that goal, and a time frame during which  the
degree may be earned through reasonable diligence.16
          Judged  by these standards, Kellys request for  alimony
seems  marginal, at best.  Kelly claimed only that he was  hoping
to get a degree.  He had not yet identified any particular school
or  program;  he  roughly estimated that in  order  to  get  that
degree,  basically Id need at least three more years of  college;
and  he made no concrete showing to justify the amount of support
that he requested:
          Court:    So how much did you say you wanted, sir?
          Kelly:    Id  agree  with  what  [my  lawyer]
                    said.  I cant really remember  what
                    she  said.  She said something  for
                    three years.
          Counsel:  It was $400.00.
          In  short, Kellys proposal hardly identified a specific
degree  program  aimed  at realizing a well-defined  career  goal
within  an  established time frame.  And, as a practical  matter,
the  proposal  might not have appeared reasonably  calculated  to
enhance Kellys earning potential.  Rehabilitative maintenance  is
a   needs-based,  pragmatic  remedy  designed  to  be  used  when
justified  by  disparity in a divorcing couples  circumstances.17
Yet as we have already mentioned, Kellys conviction means that he
will   have  most  of  his  financial  and  rehabilitative  needs
addressed  by  the Department of Corrections for the  foreseeable
future.  Although the superior court was understandably reluctant
to   consider  this  factor  because  Kellys  sentencing  hearing
remained  pending  when  the court issued  its  decision  on  the
property  division,  we see no reason to ignore  the  reality  of
Kellys situation now that he has been sentenced.  By contrast  to
Kelly,  Connie  now  shoulders  primary  responsibility  for  the
parties  children, and she faces significant financial pressures.
As  the superior court accurately observed, at the time of  trial
both  parties  lived  on  low  incomes  which  barely  met  their
          Considering  the  totality of these  circumstances,  we
hold  that  the  superior court did not abuse its  discretion  in
denying Kellys request for rehabilitative alimony.
     E.   Attorneys Fees
          Kelly also challenges the trial courts decision denying
his  request for attorneys fees.  He points out that  he  had  no
appreciable income during the trial, whereas Connie  did.   Given
this  disparity,  Kelly  contends, the trial  court  should  have
leveled the playing field by ordering Connie to pay his attorneys
          We have held that a trial court has broad discretion in
awarding  attorneys fees in divorce cases.18  In exercising  this
discretion, the court must focus on the parties relative economic
situations and earning capacities.19  We will not reverse a trial
courts   ruling  on  attorneys  fees  unless  it  is   arbitrary,
capricious, or manifestly unreasonable.20
          Here, in denying Kellys motion for attorneys fees,  the
superior   court   properly  noted  that  the  parties   economic
circumstances  during this case are the relevant ones   not  what
plaintiff might make in the future.  The court went on to observe
that,  at  the  time of trial, both parties had low incomes  that
barely  covered their expenses. Because the record  supports  the
superior  courts  view  of the case and fails  to  establish  any
glaring financial disparity, we hold that the court did not abuse
its discretion in denying Kellys request for fees.21
     F.   Kellys Request To Appear Personally at Trial
          Kelly  maintains  that the superior  court  abused  its
discretion  by  denying  his pretrial request  to  allow  him  to
participate in the divorce trial in person.  He insists that  the
Department  of Corrections could have transported  him  from  the
jail  to  the courthouse at minimal expense and without  delaying
the  proceedings.  By requiring him to participate in  the  trial
telephonically,  Kelly insists, the court robbed  itself  of  the
opportunity to fairly assess his truthfulness while he testified.
Kelly  further  suggests  that his  absence  from  the  courtroom
handicapped  his  attorney  by  foreclosing  all  possibility  of
contemporaneous    consultation   at    trial.     Under    these
circumstances, Kelly claims, [p]rejudice should be presumed.
          Initially,  we  note that the record fails  to  support
Kellys  claim that the court deprived him of the right to consult
with  his counsel.  To the contrary, the record reveals that  the
superior  court  allowed Kellys lawyer to  speak  privately  with
Kelly both times counsel requested to do so during the course  of
the trial.
          Furthermore, the record fails to convince us that Kelly
met his burden of showing that his personal presence at trial was
necessary  to  allow the court to evaluate issues of credibility.
Kellys  burden  on this point is established by AS  33.30.081(f),
which prohibits courts from ordering a prisoner to be transported
to court for civil proceedings unless the prisoner establishes an
actual and pressing need:
               A  court may order a prisoner who  is  a
          party  or  witness  to a civil  action  or  a
          witness to a criminal action to appear  at  a
          place   other   than  within  a  correctional
          facility only if the court determines,  after
          providing  a reasonable opportunity  for  the
          commissioner  to comment, that the  prisoners
          personal appearance is essential to the  just
          disposition  of the action.   In  making  its
          determination,   the  court  shall   consider
          available   alternatives  to  the   prisoners
          personal appearance including deposition  and
          telephone testimony.[22]
          We  have previously identified several factors to guide
a  trial  court  in  determining  whether  a  prisoners  personal
appearance  is  essential  to the just  disposition  in  a  civil
          In  making its determination the trial  court
          may  take  into  account [1]  the  costs  and
          inconvenience of transporting a prisoner from
          his  place of incarceration to the courtroom,
          [2]  any  potential danger or  security  risk
          which  the  presence of a  particular  inmate
          would   pose   to   the   court,   [3]    the
          substantiality of the matter  at  issue,  [4]
          the  need for an early determination  of  the
          matter, [5] the possibility of delaying trial
          until  the  prisoner  is  released,  [6]  the
          probability of success on the merits, [7] the
          integrity of the correctional system, and [8]
          the interests of the inmate in presenting his
          testimony   in   person   rather   than    by
          We  review a trial courts decisions regarding a  partys
telephonic   appearance   for  abuse  of   discretion.24    Under
circumstances similar to those at issue here, we have  previously
found  that  a  trial  court was well within  its  discretion  in
denying a prisoners motion to appear personally in a civil trial:
          While expressing his desire to be present  at
          trial   and   intention  to   testify,   [the
          appellant] did not demonstrate to  the  court
          what  specific  information  he  intended  to
          convey  through  his  testimony  that   would
          depend on his credibility, nor did he present
          the  court with any basis on which to believe
          that  the  outcome of the case  would  depend
          upon  his presence. Without a specific  offer
          of   credibility-dependent  evidence   or   a
          demonstration in his motion of  any  material
          issues he intended to dispute, the court  was
          well   within  its  authority  to  deny  [the
          appellants] motion for transport.[25]
          In   this  case,  Kellys  pretrial  motion  to   appear
personally  at  trial advanced no specific offer of  credibility-
dependent evidence; it merely noted that Kellys credibility would
be  relevant  to the courts decisions in classifying and  valuing
the  marital property.  As Judge Smith observed in rejecting this
generalized contention during the trial, Kellys testimony  during
the  recent  criminal trial had given the judge ample opportunity
to  observe Kellys demeanor and Kelly offered no reason to expect
that  his  personal presence during the divorce trial  would  add
anything new.
          Moreover,  the  main  points  in  contention  at  trial
Kellys separate ownership of the marital home and his request for
rehabilitative  alimony   turned largely on  evidence  concerning
past  conduct  of  the parties that might have  manifested  their
intentions  concerning  the  status of  their  marital  home  and
evidence concerning their current financial status.  Because self-
serving  testimony describing a partys prior intent  regarding  a
disputed  item of property seldom deserves much weight,26  Kellys
          personal presence to give this sort of testimony would not have
been   crucial.   Accordingly,  the  court  did  not  abuse   its
discretion  in concluding that Kellys personal presence  was  not
essential to the just disposition of the action.27
     G.   Bias and Recusal
          In  his last argument, Kelly contends that Judge  Smith
was  biased.  Specifically, he argues that the judge should  have
recused  himself from the divorce case and granted  a  new  trial
because   of   his   strong  adverse  reaction  to   pornographic
photographs introduced during Kellys criminal trial   a  reaction
Judge  Smith failed to  disclose until Kellys sentencing hearing,
which  occurred  eight  days  after the  judge  had  decided  the
property issues in Kellys divorce.
          We  review a judges decision on an issue of recusal for
abuse  of discretion;28 we will reverse a judges refusal to  step
down from a case only when it appears patently unreasonable29  or
when a fair-minded person could not rationally come to [the same]
conclusion on the basis of known facts.30  When a claim  of  bias
only  asserts an appearance of partiality, as distinguished  from
actual  bias, we require the complaining party to make a  greater
showing  for  reversal.31   In  deciding  whether  an  abuse   of
discretion  occurred, we consider the totality  of  the  relevant
circumstances and facts.32
          As we have already described in the statement of facts,
a  jury  found Kelly guilty in his criminal case in  March  2004.
Judge  Smith  imposed  his sentence on June  25,  2004.   In  the
interim,  in early June, the judge tried the property  issues  in
the  divorce  case,  and  on  June 17  issued  his  findings  and
conclusions  resolving those issues.  When Judge Smith  spoke  at
Kellys  sentencing  hearing,  he emphasized  the  seriousness  of
Kellys  misconduct; to illustrate the point, the judge  described
his   own  strong  reaction  to  viewing  the  images  of   child
pornography that were introduced at the trial.33
          Pointing  to  these remarks, Kelly asserts  that  Judge
Smiths  reaction was so primal, and so visceral,  that  he  could
barely  restrain himself.  In Kellys view, Judge  Smiths  remarks
revealed intemperance and established that the judge had formed a
bias against Kelly that must have influenced his judgment when he
ruled  against  Kelly in the divorce proceedings.  Alternatively,
Kelly  reasons,  if the sentencing remarks fail  to  show  actual
bias, they at least create an impermissible appearance of bias.
          But  Kelly  specifically  asked  that  Judge  Smith  be
assigned  to both of his cases.  Moreover, opinions formed  by  a
judge presiding over a trial do not reflect bias when they merely
address  relevant evidence admitted in the course of the trial.34
Here,  the  views  expressed by Judge  Smith  at  the  sentencing
hearing   described   his  reaction  to  photographs   of   child
pornography  admitted during Kellys criminal trial.  Judge  Smith
had  been  required to review, evaluate, and rule on the evidence
in  the course of the trial.  The views Judge Smith expressed  at
the  sentencing hearing were confined to the nature and character
of  the  evidence  itself and they served only to  emphasize  the
important  bearing that this evidence had on one of  the  primary
issues  the court needed to evaluate in imposing Kellys  sentence
          the seriousness of his crimes.
          Nothing  in  the judges remarks evinced any inclination
or  intention  to  rely  on his negative reaction  to  the  child
pornography  except  to  the extent  that  this  evidence  had  a
legitimate bearing on the disposition of the criminal  case  then
under  consideration.  And Judge Smith said  nothing  to  suggest
that  he  had formed any generalized bias against Kelly, or  that
his reaction to the child pornography might color his judgment of
Kelly in any other context.
          Of  course,  it  is  undeniably true that  Judge  Smith
voiced a strong negative reaction to the child pornography.   But
such   photographs  are  inherently  powerful   evidence:   their
potential to evoke a strong response from a judge or a juror in a
criminal  trial  cannot reasonably be viewed as unforeseeable  or
surprising.   And  Kelly suggests no reason  to  think  that  the
potential  effects of this evidence might not have been  apparent
to  him when he was originally charged with the crimes.  In spite
of  this, Kelly expressly stated that he preferred to have  Judge
Smith preside over both of his pending cases.
          More  important, Kelly has never specified how  any  of
the  views Judge Smith expressed in the criminal case might  have
carried over and actually influenced the judges decisions on  the
matters  at  stake  in  the  divorce proceedings.   Kelly  merely
suggests  that  Judge  Smiths bias is evidenced  by  his  rulings
against  Kelly in the divorce. But as we have already  determined
in  reviewing  the merits of the disputed rulings, all  of  Judge
Smiths decisions were carefully explained, find strong support in
the evidence, and are solidly grounded on applicable law.  And in
all other respects, Judge Smith appears to have scrupulously kept
Kellys  two  cases separated  both procedurally and substantively
so  as  to  insulate  the  decisions  in  the  divorce  from  any
appearance of influence by developments in the criminal case.35
          Finally,  as  Judge Hensley recognized in independently
reviewing  and affirming Judge Smiths refusal to recuse  himself,
Judge  Smiths  written  decision denying  Kellys  recusal  motion
thoroughly  explained  the judges basis for  refusing  to  remove
himself  from the case and persuasively refuted Kellys accounting
of actual and apparent bias.
          Under these circumstances, Kellys claim of bias appears
to  be  little  more than an expression of [his]  dissatisfaction
with  the  superior courts rulings.36  We thus conclude that  the
record  reveals no actual or apparent bias by Judge Smith and  no
abuse  of discretion in the courts orders denying Kellys  motions
for  recusal  and to set aside the courts earlier order  dividing
the parties marital property.
          For  these  reasons,  we  AFFIRM  the  superior  courts
     1     During  this period, Kelly and Connie also obtained  a
loan of $30,000; but this loan was eventually forgiven and has no
bearing on this appeal.

     2    Odom v. Odom, 141 P.3d 324, 332 (Alaska 2006).

     3    Id.

     4    Green v. Green, 29 P.3d 854, 857 (Alaska 2001).

     5    Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994).

     6    Veselsky v. Veselsky, 113 P.3d 629, 632 (Alaska 2005).

     7    Hanson v. Hanson, 125 P.3d 299, 304 (Alaska 2005).

     8    Korn v. Korn, 46 P.3d 1021, 1023-24 (Alaska 2002).

     9    Harrelson v. Harrelson, 932 P.2d 247, 250 (Alaska 1997)
(quoting Cox, 882 P.2d at 913).

     10     See  Lowdermilk v. Lowdermilk, 825 P.2d  874  (Alaska

     11    See AS 25.24.160(a)(4).

     12    Silvan v. Alcina, 105 P.3d 117, 125 (Alaska 2005).

     13    Fernau v. Rowdon, 42 P.3d 1047, 1058 (Alaska 2002).

     14    Jones v. Jones, 835 P.2d 1173, 1178-79 (Alaska 1992).

     15    Johnson v. Johnson, 836 P.2d 930, 934 (Alaska 1992).

     16     Virgin  v. Virgin, 990 P.2d 1040, 1043 (Alaska  1999)
(quoting Myers v. Myers, 927 P.2d 326, 328 (Alaska 1996)).

     17      See  AS  25.24.160(a)(2)  (instructing  a  court  to
consider,  among  other things, the financial  condition  of  the

     18    Sloane v. Sloane, 18 P.3d 60, 64 (Alaska 2001).

     19    Dodson v. Dodson, 955 P.2d 902, 914 (Alaska 1998).

     20    Schmitz v. Schmitz, 88 P.3d 1116, 1122 (Alaska 2004).

     21     Cooke  v.  Cooke,  625 P.2d 291,  293  (Alaska  1981)
(reversing   an   award  of  attorneys  fees   under   comparable

     22    AS 33.30.081(f) (emphasis added).

     23     Richard B. v. State, Dept of Health & Social  Servs.,
Div.  of  Family & Youth Servs., 71 P.3d 811, 827  (Alaska  2003)
(quoting  B.H.  v. W.S. (In re F.H.), 283 N.W.2d 202,  209  (N.D.

     24    Richard B., 71 P.3d at 817.

     25    Id. at 828.

     26    See, e.g., Hanson v. Hanson, 125 P.3d 299, 308 (Alaska
2005)  (Hanss  testimony that he always  intended  the  house  to
remain  separate  property is insufficient to reverse  the  trial
courts finding of intent because such testimony is accorded  less
weight  than  other,  more  objective factors.  (citing  Leis  v.
Hustad,  22 P.3d 885, 888 (Alaska 2001) ([S]elf-serving testimony
at trial is entitled to little weight because the parties actions
during  the marriage are better indicators of the parties  intent
during the marriage.) (citations omitted))).

     27    AS 33.30.081(f).

     28     Hallam  v.  Alaska Airlines, Inc., 91 P.3d  279,  283
(Alaska 2004).

     29    Long v. Long, 816 P.2d 145, 156 (Alaska 1991) (citation
and internal quotations marks omitted).

     30     Id.  (quoting  Blake v. Gilbert, 702  P.2d  631,  640
(Alaska 1985) (alteration in original)).

     31     Long, 816 P.2d at 156 (quoting Alaska Trams Corp.  v.
Alaska Elec. Light & Power, 743 P.2d 350, 353 n.7 (Alaska 1987)).

     32    Lacher v. Lacher, 993 P.2d 413, 421 n.21 (Alaska 1999)
(quoting Blake v. Gilbert, 702 P.2d 631, 642 (Alaska 1985)).

     33    See supra at 5.

     34     Both Lacher, 993 P.2d at 420-21, and R.J.M. v. State,
946  P.2d 855, 869-70 (Alaska 1997), reject claims of bias  based
on a judges participation in prior judicial proceedings involving
the  same  party  in  which  negative evidence  might  have  been

     35     For  example, as previously noted, Judge Smith stayed
the  divorce proceedings pending trial on Kellys criminal charges
to  ensure that the divorce proceedings would not pressure  Kelly
to  waive  his  right against self-incrimination in the  criminal
case;  and  although the jury verdict against Kelly was virtually
certain  to result in a lengthy prison sentence for Kelly,  Judge
Smith expressly declined to consider this possibility as a factor
in  ruling  on Kellys request for spousal support because  Kellys
sentencing hearing had not yet been held.

     36    Lacher, 993 P.2d at 421.

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